In re Nicolas R.
Filed 8/14/12 In re Nicolas R. CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re NICHOLAS R. et al.,
Persons Coming Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
DIANA G. et al.
Defendants and Respondents;
NICHOLAS R. et al.,
Appellants.
D061883
(Super. Ct.
No. SJ12620A-D)
APPEAL from
an order of the Superior Court
of
County, Garry G. Haehnle, Judge. Affirmed.
Juvenile
court dependents Nicholas R., Marcos R., Jasmine R. and Ivan R. (together, the
children) appeal the six-month review hearing order continuing reunification
services for their parents, Diana G. and Eduardo R. (together, the
parents). We affirm.
BACKGROUND
The parents
have histories of domestic violence and methamphetamine use. In early August 2011, the
Agency (the Agency) filed dependency petitions for seven-year-old Nicholas,
five-year-old Marcos, one-year-old Jasmine, and Ivan, who was not quite one
year old. The petitions alleged the
children were exposed to violent confrontations between the parents. During an argument in the children's presence,
Eduardo punched Diana once in the face and 10 times in the head. Diana agreed to follow the Agency's safety
plan, but did not obtain a restraining order and allowed Eduardo to move back
into the house. In 2005 Eduardo had
spent time in custody for domestic
violence after he pulled Diana into a vehicle by her hair and hit her on
the face and neck while driving with Nicholas in the car.
The
children were detained in Polinsky Children's Center, then in the foster home
of a maternal great-aunt (the aunt).
Upon detention, Marcos tested positive for methamphetamines and
amphetamines, and Ivan tested positive for methamphetamines and cocaine. Marcos, Jasmine and Ivan exhibited
developmental delays. Ivan's muscle tone
was poor and his weight was low.
Nicholas reported that Eduardo had physically abused him. Personnel at Nicholas's school said Diana
often brought Nicholas to school late; he often wore dirty clothes; and Diana
often appeared to be under the influence and sometimes smelled of alcohol.
In late
August 2011, the court entered
true findings on the petitions, ordered the children placed in a foster home
and ordered reunification services for the parents. At the detention hearing and again at the
jurisdictional and dispositional hearing, the court admonished Diana that because
two of the children were younger than three years old when they were removed
from her custody, she would have up to six months to participate in services to
prove she could safely parent the children and, after that, her parental rights
could be terminated, or the children could be placed in long-term foster care
or guardianship. (Welf. & Inst.
Code, § 361.5, subd. (a)(3), 3d para.)
individual therapy, domestic violence, parenting
programs and substance abuse treatment.
At the outset of this case, Diana
continued living with Eduardo and there was further violence. Diana continued her methamphetamine use. She began participating in services, then
stopped participating. In November 2011
she entered Serenity House, but was discharged on November 22 for physically
attacking another resident. Diana
returned to Eduardo. On November 25, she
was arrested for fraud and possessing methamphetamine. She was convicted of fraud and jailed. On February 10,
2012,
she was released to the four- to six-month KIVA inpatient drug treatment
program. At the time of the six-month
review hearing in April, Diana was attending a parenting class at KIVA and had
attended three sessions of individual therapy and two sessions of a 24-session
domestic violence program. The
facilitator of the domestic violence program reported Diana had made a
"good start." Diana was
participating "with a positive an[d] attentive manner,"
"disclosing well" and "demonstrat[ing] verbally and behaviorally
that she wants to do well in [the] program." Diana had 35 days of sobriety and her drug
tests were negative. She was in
compliance with the program.
Although Eduardo was aware of this
case, he initially evaded the Agency because he was afraid of being
arrested. He did not contact or visit
the children until February 16, 2012. On February 27, he began a 52-week domestic
violence class. By the time of the
six-month review hearing, he had attended approximately five sessions, but
minimized his domestic violence. The
instructor said Eduardo's "slowness" and history of special education
might explain his poor insight. On March
7, Eduardo began an outpatient substance abuse program. He drug tested twice with negative
results. By the time of the hearing, he
had 29 days of sobriety, had attended five sessions of a parenting class and
was doing well.
The children, who now ranged
in age from one and one-half years to eight years old, remained with the aunt. She was willing to care for them as long as
needed, but was unable to provide a permanent placement in light of her age and
her husband's health. The Agency had
been unable to find other "concurrent planning" relative
caretakers. The aunt said Diana was "very smart," and
with help she would "be the mom that her children deserve." The parents' visitation was irregular, and
Diana was unable to manage the children's behavior.
The
children had special needs. Marcos was
aggressive and had been removed from his after school program for hitting a
staff member, but his behavior had improved with the aunt's guidance. Jasmine appeared much happier than she had at
the outset of the case, and although she still had trouble speaking, she was
able to "speak somewhat." She
was "on the autism spectrum."
Ivan's activity had increased greatly, and he was doing very well. Nicholas had an Individualized Educational Program to address
his reading and writing deficits, and Marcos had one to address a myriad of problems.
On April
5, 2012, over the objections of the children's counsel and
the Agency, the court continued the parents' reunification services until the
12-month review hearing, to be held on August 16. The court stated the parents had "tried" and
cited their days of sobriety. The court
noted the positive remarks of the facilitator of Diana's domestic violence program, praise
that was unusual in an initial progress report. The court found that Eduardo "did come
in eventually," then "got off to a good start." The court decided it would "take a
chance on [the] parents," but warned them that if they missed one drug
test, had a positive test, missed a therapy appointment, were seen together or
had another violent incident, the Agency would file a section 388 petition and
the court would terminate services. The
court asked the Agency to find "a more intensive parenting class"
that would help the parents to understand the children's developmental issues
and would teach Diana to manage the children's behavior.
DISCUSSION
"If the child was under three
years of age on the date of the initial removal, or is a member of a sibling
group . . . , and [at the six-month review hearing] the
court finds by clear and convincing evidence that the parent failed to participate
regularly and make substantive progress in a court-ordered treatment plan, the
court may schedule a [section 366.26] hearing . . . . If, however, the court finds there is a
substantial probability that the child . . . may be
returned to his or her parent . . . within six
months . . . , the court shall continue the case to the
12-month permanency hearing."
(§ 366.21, subd. (e), 3d para.)
Here, because the 12-month date was approximately four months away
rather than six, the court was to "consider only what the impact of
on the parent[s] and [children] . . . ." (Tonya
M. v. Superior Court (2007) 42 Cal.4th 836, 846.) The court impliedly found there was not clear
and convincing evidence the parents "failed to participate regularly and
make substantive progress in" their services, and there was "a
substantial probability that the [children] . . . may be
returned to" the parents by the time of the 12-month review hearing. (Id.
at p. 844.)
This is a very close case, as the
juvenile court recognized. Had we
been the trier of fact, we might well have made a different decision. We cannot say, however, that the court abused its
discretion in continuing services. (
49, 64.) That is, "[w]e cannot say
the court's ruling was ' "arbitrary, capricious, or patently absurd,"
' or that no reasonable court would have ruled the same way." (In re
S.A. (2010) 182 Cal.App.4th 1128, 1139, quoting In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.) The parents had undertaken some work, albeit
late, and had made a promising beginning in services. The court decided to monitor the case closely
and would not hesitate to change its order if a section 388 petition were
filed. The record demonstrates a
potential difficulty in finding a permanent placement for this sibling group
with special needs, and the court was clearly concerned about keeping the
children together. On this record, we
cannot conclude it was irrational for the court to provide additional services.
DISPOSITION
The order is affirmed.
HUFFMAN, Acting
P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
name="_ftn1" title="">[1] All further statutory references are to
the Welfare and Institutions Code.
